In order to prevent sexual harassment, proper training should be mandatory for all employees. Watch our webinar as we give you the rundown on legalities and tips for protecting your organization and employees from these threats.
Host: Zee Asghari (Director of Business Development and Partnerships at Auzmor, Inc.)
Speakers: Brent M. Douglas (Partner at Martenson, Hasbrouck & Simon LLP) and Dr. Nima Moayedi (CEO & Founder of Psychology Works, Inc.)
Happy Tuesday to everybody. Today’s topic here at Auzmor will be sexual harassment prevention. It’s an extremely hot topic that we’re dealing with across the US, so we definitely do have a couple experts here today, which I will let them introduce themselves here in a minute.
I’d like to start off by saying I’m Zee, I’m actually the Director of Business Development and Channel Partnership here at Auzmor. I do work with clients on a one on one basis, doing strategic planning for their organizations, as well as helping them basically select any of the solutions and work with them on training programs completely accustomed to their team and organization. So that’s kind of my primary focus here at Auzmor.
Good afternoon everyone. My name is Brent Douglas. I’m a partner at Martenson Hasbrouck & Simon, and I practice employment law. In addition to counseling HR clients through tricky terminations and other strategic decisions, difficult leaves of absence, etc., I also represent companies when they are sued for wrongful termination and sexual harassment.
So, I’m Dr. Nima Moayedi. I’m a licensed clinical and forensic psychologist in California. I am calling in from inside of a prison. So the connection isn’t the best. I am a licensed clinical and forensic psychologist. I work with the courts in California. I work with level four inmates. I also have a private practice where we do forensic work. We do not guilty by reason of insanity, capital punishment, competency for trial and mentally disordered offenders.
Thank you for that, Nima. And everybody, I think a big component of course, Brent will be talking a lot about the legal aspect, but also I think one great aspect, in today’s discussion, Nima will be talking a lot about the psychological aspects of sexual harassment. So, we’re super excited for him to take time out of his busy day and to be able to spend today with us. So thank you so much for that, Nima.
So to start off with, I’d like to just give everybody a quick introduction of a little bit about what we do here at Auzmor. So, Auzmor actually is an HR software company, so we provide currently learning management solutions as well as training for our clients. We do work with them one-on-one to kind of plan what are the missing gaps for them and plan accordingly.
But our vision actually does not stop there. So kind of our vision as a whole for Auzmor is one of the process of building the entire HR suite ecosystem. So basically from the learning management system to HRIS, Performance, ATS. I have to be able to build the first actual end-to-end in-house feat to be able to cater through all your guys’ HR needs from one centralized provider.
TAKEAWAYS & TOPICS
Some of the key takeaways, I think I’d like to talk about before we get started today. So I think the first topic is about sexual harassment. So I do want to make sure that everybody understands how to deal with workplace harassment in general. The second thing I think that would be very important is understanding, the psychological aspects of it and why the person that’s experiencing something like that, what they’re going through.
But also I think getting a lot of Brent’s input on the legal aspect is really, really huge. And ensuring what are the right tools and methods that we could use and utilize to ensure that we train all of our employees. And that we’ve done everything from our end to prevent an incident like that as an organization. We will be covering a few topics today. So I’d like to just briefly review that. First and foremost, I think just a general definition of understanding what sexual harassment is as a whole. Second of all, I’d like everybody to just get a little bit of input of the psychological aspect of workplace harassment as well as the effect.
Brent will be talking about a couple of case examples that his firm is currently working on or have had variances. And I think getting some of Brent’s input as well on the proper actions of dealing with workplace harassment and just more for the legal process. And then what are the proper tools and things that we could do as an organization to make sure that we prevent these incidents from happening.
SEXUAL HARASSMENT CASES ARE UNDER-REPORTED
So, the first biggest thing with workplace harassment, Brent, I’d like you to chime in here a little bit, but it’s an extremely hot topic, and I know that based off some research that we have done and seen, we’ve seen that over 54% of women have experienced workplace harassment. And over 30% of those had said that it was involving a male coworker and someone in management or a supervisory role. So Brent, I’d love for you to maybe chime in kind of from some of your experience. What are the ratios and how do some of those numbers sound personally from your guys’ organization, what you guys have seen?
Like all harassment claims and sexual assault claims, sexual harassment cases are notoriously under-reported. I’m hesitant to say the majority, but an extremely high number of cases go unreported because people fear retaliation. They fear their shifts be taken away, their pay will be altered or just change the dynamic at their workplace. They’ll be known as someone who complains. And to a certain extent, the fear of retaliation can really compound the work environment and make it the impactful harassing atmosphere that you’re trying to avoid in the first place.
So one of the things I want to make sure that we impart on people today, it’s not just to understand harassment, how to prevent it and how to address it, but also how to create a culture where people feel comfortable coming forward. Because the sooner people address it and the more open they feel their workplace is, it’s really an underlying way to prevent harassment claims in the first place. So I look at all statistics I see federally from the EEOC and statewide, California here from the Department of Fair Employment and Housing, as being far too low. It’s probably not 54% of women have experienced some form of sexual harassment including mild harassment. It’s probably 90%.
FINANCIAL COST OF WORKPLACE HARASSMENT
From your personal experience, Brent, when it does come to these harassment cases, we’ve seen various numbers and we’re only talking about what people do come up front about, I’m sure a lot of the audience would be interested in what are the kinds of financial penalties for settlements when it does come to these cases. What do you usually see and what are the variations?
As far as financial penalties? The settlement and jury verdicts, until very recently, almost all of the settlement sums were confidential and California recently passed a law that when someone makes an allegation for sexual harassment that you cannot, as part of the settlement agreement, require nondisclosure on behalf of the victim, the plaintiff. So we’re going to actually gain a lot of data on that point.
For the most part, employment related litigation is based on the wages of the person. And this is a, I didn’t invent the rules, I cannot say this, but someone who makes $30,000 or $40,000 a year who is sexually harassed at work may recover three or four times their salary. They may say this is a hundred of dollars settlement, this a three hundred thousand dollar settlement whereas the same behavior and flipped it on a female executive who makes $250,000 a year, she would similarly recover say two, three, four times the size of her salary.
That’s a $750,000 problem for an organization or million dollar problem. And obviously it’s unfortunate in terms of psychological impact, rich people are not more impacted by negligent behavior than your minimum wage or rank and file staff, but multiples of yearly earnings are kind of a good way to think about the exposure and your run of the mill settlement.
When cases go to trial and when you get jury verdicts and when you read about it in the newspaper, numbers get big, numbers get real big. In addition to money that is paid to the victim and every state, the person is allowed to recover attorney fees. If it gets to the point where you’re going through a trial, you’re talking for sure six figures and fees. And then, in every state, victims are allowed to petition the court for punitive damages.
That is money that is not designed to make a victim whole to compensate her or him for medical damages and distressed or lost wages. It is a dollar sign designed solely to punish the employer. And in situations where punitives are involved, it’s millions of dollars and the threat of the millions of dollars of punitives is what makes your even somewhat benign, but proven sexual harassment claims that may be a $50,000 or $60,000 problem. Above and below six figures because a company’s too scared to roll the dice, too scared to put 12 people in a jury box and potentially get hit for millions of dollars.
THE POWER OF THE #MeToo MOVEMENT
Do you think, with California bringing that new aspect of, now it being something to where they don’t have to, that they have to be open about it and where you’ll probably see it more in the news. Do you think it has anything to do with kind of people voicing more about sexual assaults and just these specific traumatic instances that people are going through?
Yes. What you’re seeing is a direct result of the #MeToo movement and here in California you’re really kind of the poster child for that is it’s Harvey Weinstein and so the thing is that there are in fact high-powered predators in certain places that the companies have been silently settling cases for decades. It’d be interesting to see the effect of the new prohibition on nondisclosure provisions.
On one hand, it’ll obviously make certain work environments known. It’ll probably make certain high-powered executives accountable who beforehand could kind of hide behind these provisions. On the other hand, a lot of times a company, the nondisclosure is really all that they’re buying. They don’t want allegations, it can be difficult to sustain and they really want it to go away and go away quietly. So I do wonder if for certain cases the fact that it can’t be confidential anymore is actually going to drive some settlement values down. Pretty sure to say we don’t have data on that yet.
SEXUAL HARASSMENT DEFINITION
Sexual harassment as a whole, just for everybody to kind of understand. I think also the general definition of it and Brent, feel free to chime in on any of this that I may say. Sexual harassment as a whole is any unwelcome sexual advances, requests for sexual favors and other verbal or physical conduct of a sexual nature is what is known to be anything under sexual harassment. Brent, is there anything you’d like to kind of add in addition to this for people to understand the general definition of sexual harassment?
As we go through these slides, you’ll see that there are different types and then there is sexual harassment that I can describe from a legal standpoint. And then Dr Moayedi is going to talk about not just the psychological effects of sexual harassment as defined by the law, but as defined by the brain as defined by the victim. And so when I deal with HR training and when I deal with the boots on the ground, the people.
Even training from HR, I want to make sure people understand that there are not just legal federal definitions and state by state definitions, but there’s also conduct that may be prohibited by your employer. You can lose your job for inappropriate behavior that falls short of the standards we’re going to talk about today. And it severely negatively impacts people by behavior that fall short of the standards that we’re going to talk about here today.
So with those caveats aside, exclusively talking about the legal definitions anywhere in the United States, you can sue the Equal Employment Opportunity Commission. You can have the right to sue letter through the EEOC. And the definition in front of you applying to any company with 15 or more employees. This is a remedy that’s available to people under title seven regardless of where they live.
And in most progressive states, say California, Massachusetts, New York, and Washington, you will have more employee favorable, more protective statutory framework where it can be employers of any size and the definition can change. So where you are, particularly on the west coast, really the EEOC doesn’t mean much because there’s a more employee favorable and more restrictive framework. So you need to make sure that you are reading from the right script when helping your boss managing out as to whether certain behavior constitutes a violation of the law.
TYPES OF SEXUAL HARASSMENT
I think that people are easily able to conceptualize the two different types. The first is Quid Pro Quo, Latin for “this, for that.” And when someone with authority over someone else dangles a positive workplace environment or threatens an adverse employment decision based upon someone’s acceptance of a sexual advance, and defining some of the subparts coming in, we’d sample some of the subparts is really where the rubber meets the road.
It may not just be that it’s have sex with me or you are fired. It may be that the advance is just kind of repeated requests to go on a date or even in a group setting or something that may be kind of a small group setting and that it’s not a threat, but it does appear that the people who socialize with this boss after work get favorable work assignments, get to work on the big clients, and the big projects.
And so when you have a team of people underneath you in terms of preventing Quid Pro Quo sexual harassment, it’s really important to analyze and be cautious of social invitations. And I hate to say that people can’t socialize outside of work and whatnot. People in HR need to be cautious of and say, Hey, are our people who supervise others, inviting people to outside social events? Is there pressure? Does there appear to be some kind of coercion involved and to zoom out and look at the people who participate in the social activities. Do they have more favorable career trajectories? Do they have better paths? And if so, then there may be something afoot.
There may be people who are quietly feeling like they’re alienated because they don’t want to accept someone’s advance. Another type of sexual harassment is the hostile workplace, which is something that people can obviously picture. We get into what can constitute a hostile work environment and the different ways that people can project that hostility, but it is when acts of a sexual nature substantially interfere with someone’s ability to do their work.
THE MOST COMMON TYPE OF SEXUAL HARASSMENT
It’s hostile work environment. The vast majority are hostile work environment. A quid pro quo sexual harassment case is more limited because by definition its players are more limited. It’s going to be a boss who is trying to solicit sexual acts from someone who works for them. Whereas the hostile work environment can be created by someone on your same level, your peer and not sexually harass you. So just by definition you’ve got a bigger roster.
Then from a legal standpoint, a quid pro quo sexual harassment generally stems from a single event or multiple events close to the time. But the hostile work environment can be the accumulation of acts over years. And so to a certain degree it’s kind of a lower threshold in terms of pleading and alleging a misconduct that you can cite to a text from last year and a joke from this year and a pat on my back from a couple of years ago and say collectively this is the environment we’re dealing with. So yes, the short answer is the vast majority, I would say 90 plus percent are hostile work.
CATEGORIES OF SEXUAL HARASSMENT
The case law and the administrative agencies in each state that handle sexual harassment claims have been clear that it can come in many forms.
Of course you’ve got your verbal, you’ve got the verbal solicitation of sexual advance jokes, inappropriate comments, compliments that are over the line at work, visual, your pictures, and your cartoons.
The physical, of course, touching, massaging, encroaching on personal space. And your email communications. But the common trend in my hostile work environment, sexual harassment claims is text messages. It is, some graphic pictures, some of it is solicitations, some of it is flirtation.
And a lot of times it’s emojis and selfies that are not appropriate. And in addition to that being so common now, particularly with the younger workforce, what particularly troublesome, is that because it’s not at work because it’s not on a company provided system. A lot of times employers in HR are the last to know.
It’s very difficult to take the advice we give you today and make sure that people aren’t texting each other after work. But that’s where the frontier of these claims are right now. And it’s difficult because I’m sure you know, the viewers today represent an incredible variety of workplaces and there aren’t hard and fast rules.
There is behavior in between waiters at a restaurant that you’d be immediately fired for if between associates at a big law firm. And so you can’t come in and just be the police and say the following behavior is per se over the line and per se making people comfortable. Of course some major things fall into that category. But for the most part, HR people have to manage the team they’ve got and they have to manage in the industry that they’re given. And this is a difficult task.
DISPELLING SEXUAL HARASSMENT MYTHS
Hey, I heard you a couple of times talk about the myths, right? So there’s so many myths around it where people think it’s just women that experience it (sexual harassment) or if it’s just a manager. You have someone in management that you may experience it with, which I think it was a great point that you made earlier that it could be really anybody on the same tier as you. It could even be an HR person doing it to an HR person or a manager doing it to a manager. So it really could be anyone at that level any way. How often do you kind of see the ratio to those two when it comes to the difference?
You know, I find myself falling in the trap of using the female gender to describe the prototype victim. And of course that’s not true. Men and women can be the victims and men and women can be the perpetrators. It remains that women are the vast majority of the claims that come across my desk. I’ve got a handful of cases with male victims. I’ve got a very small sliver of cases with male victims and female alleged harassers that remains the least likely pairing. But this is a great slide.
All genders can be harassed and all genders can be harassers. Additionally, the U S Supreme Court and California Supreme Court have both been crystal clear about same sex offenders. The big case here was UPS. We had a group of guys who worked in the UPS stocking facility warehouse, and two of the guys would pick on a third and it was a game of grab ass and guys touching each other. They bend over and the guys would come up behind him and touch him and he sued on super sexual harassment.
And their defense, which got all the way to the Supreme Court, was it’s not sexual harassment because we’re not gay. And it seems kind of novel, but it does go to the core of the definition of a hostile work environment claim, which that has to be conduct of a sexual nature that substantially interferes with someone’s ability to do their work. And so they said, it can’t be a sexual nature because we’re not sexually attracted this person. And the court said, now what? We look at the behavior in a vacuum.
And if someone’s bending over and you’re grabbing their butt, and you’re touching them, that’s sexual behavior. You can’t get out of jail by saying, “Hey, I’m not gay.” And your last point is a great thing that not just supervisors can be harassers. It is considered per se harassment when it is the supervisor who’s doing the negligent behavior is imputed on the employer when colleagues would’ve been peers, harass other peers. The company is only legally liable. It knows or should have known of the behavior. And that’s a great distinction.
Going back to what I said earlier, between the kind of behavior that constitutes unlawful behavior and the kind of behavior that gets you fired. We don’t analyze behavior really through the legal rubric at all times. We’re looking to promote the best workplace and, both legally and ethically, peers can harass, other peers and people who don’t report to them.
The key fact here is the unwelcome behavior. I have the victim, someone who doesn’t like it. It’s not a question. We never look into the mindset of the harasser. I didn’t mean it. I meant it as a compliment, etc. Legally, we don’t care about any of that. We don’t ask any of that. We asked the victim, this person, how did that make you feel? And if the circumstances surpassed a reasonable person’s standard then that’s the only thing that matters.
5 GROUPS OF SEXUAL HARASSMENT
You had mentioned that there was a couple of different categories that sexual harassment is broken into as a whole. Could you give us a breakdown of the five different categories?
So you have gender harassment. This is the most common. This is basically generalized sexist statements. It’s behaviors that convey insulting or degrading attitudes about men or women. Do you think of obscene jokes, humor about sex remarks, text messages? As Brent said that, this is under that category.
The next one you have is seductive behavior. So this would be unwanted, inappropriate, offensive sexual advancements. It’s something that you’re trying to get something out of it. It can be an unwanted sexual invitation. It could be a request for dinner or date that’s unwanted. If already been told no, but there are persisting phone calls, continuous text messages, etc.
Next one you have is a sexual bribery. So this will go towards the quid pro quo. Do this. You can get a raise, don’t do this, you’re going to be wreck, reprimanded. They get more favorable job assignments that would be sexual bribery. Another one is sexual coercion. Think of it as threat of punishment, negative performance on evaluations. So this would be more like Harvey Weinstein and it’s sexual imposition, forcefully touching, grabbing, forcing yourself on someone. This is more towards sexual assault.
WHY PEOPLE COMMIT SEXUAL HARASSMENT
What is even going on in their mind from a psychological standpoint? What even makes them think that behavior is okay? Or what’s the ultimate goal for them?
Try to consider the lifespan of a criminal. Let’s not even talk about a perpetrator. Let’s talk about just a criminal. So spending four years in a level four prison. I’m sorry, six years in level four prison. You start to see patterns. A lot of these inmates that I talked to, and you’re talking about violent murderers and rapists, it is a level four institution. The majority of what I hear back from these people is they didn’t intend to become a rapist or murderer or a serial murder. It’s something that they kind of just progressed into.
So, take this scenario. You have someone who was in their teenage years who starts walking around the street with friends, trying to see which cars are unlocked. Find a car unlocked. They shuffled through the car. They take some things. So, theft. You get a thrill from this. It’s exciting. There’s a lot of uncertainty with this type of behavior. But, as we progress, as we continue to do this, we kind of lose that excitement. So we get to a point where cars don’t really do it for us the way that they used to.
Now, imagine you’re in your 20s so you started looking into vacant homes. So again, you’re checking to see which houses are locked. If there is a side window open, now you’re breaking into homes, stealing from homes. Again, there’s a big rush, there’s a thrill. There’s an uncertainty in not getting what you came for, not getting caught. As this dissipates, this excitement, you start to become less focused on if someone is home or not. So at some point you go into a home and lo and behold, there’s someone in there.
Now it’s turned into a kidnapping or holding someone against their will type of situation. Legally, I’m not sure what that would be called, but you’re in a situation where now there’s an individual there. So now there are threats involved. You tie him up. You get what you came for. You asked about the code for the safe. Again, these types of criminal behavior kind of move up a notch. It gets to a point where at some point in one of these homes, because again, you’re not being too cautious of whether if someone’s home or not, because that confidence is there. You have that feeling of rush and it turns into an assault. From an assault, it could turn into a potential rape. Again, there needs to be some kind of excitement.
You’ll end up finally in a home where you meet someone who’s combative. Up until this point, let’s say people have been pretty complacent and basically following directions, not trying to be hostile, but now you’re in a situation where the person’s hostile. They get into a physical altercation. It turns into murder. So a lot of these types of individuals, you talked to them, they didn’t intend to become what they are, but it slowly progressed into that because of the road that they were on, the path that they were taking. So when you think about these perpetrators, if you have power without consequence, like Harvey Weinstein is a perfect example here in California. You have an individual whose cases are closed, they’re making these settlements. This guy’s a powerful individual. He’s not being reprimanded. Because there is no consequence, the behavior progresses, and as the behavior progresses, it continues to get worse because it’s not as enjoyable.
It’s not as thrilling as it once was, where, let’s say, giving jokes. It’s human nature to try to beat systems. It’s human nature to try to take the shortcut. I mean, think about if you’re working a cash register. You’re really strapped for cash. You can’t make it until the end of the month to pay your rent. So you take a couple of dollars from the cash register knowing that you’re going to put the money back when you get your paycheck. Well again, you didn’t get caught. There was no reprimanding. You pretty much got away with it. You find yourself in a similar situation. You do the same behavior, but this time you decided maybe I’m going to wait a little bit longer before I put the money back into the cash register to the point where you don’t get caught. It starts with something small.
And before you know it, when the person’s being investigated, they could have stolen hundreds, if not thousands, tens of thousands of dollars. These people don’t expect to end up where they end up. But again, it’s human nature to try to take advantage to look for a shortcut. And we rationalize our behavior in any way that we can to live with the actions that we have. So again, you talk to someone like Harvey Weinstein. There’s absolutely a side to his story. Now, the side to his story could sound like nonsense to us, but from his perception, and remember it’s our perception that’s our reality from his perspective. From his perspective, perception, he is not 100% at fault. He can probably tell us countless reasons of why his sexual advances were not, let’s say criminal or not harassment in nature.
HOW INDIVIDUALS’ PAST BEHAVIOR AFFECTS COURT’S DECISIONS
The past behavior of someone in a legal sense is only relevant if the employer knew about it or should have, failure to prevent sexual harassment. California is actually a standalone cause of action, for sexual harassment. And you also sue for the failure to prevent it. And so there has been a progression like this, which I think is fascinating to hear.
Dr. Moayedi has talked about this, that it is part of the person’s mindset and in their MO. If there’s been any documentation of it, the cases that settle for extremely high dollars in my world or when it’s the second victim, if we’ve already got a workup, if we’ve got a HR file, a person was written up for touching someone inappropriately, and then we can come forward. We’re dead to rights on the failure to prevent claim. We’ve got the documents in the HR file.
WHY VICTIMS DON’T ALWAYS SPEAK OUT
What do you see as some of the main reasons that they don’t always speak out to these specific things?
A lot of it is on the slide, right? So you’re looking at the trail. You have someone that you look up to, you have someone that you have your trust in, and they take advantage of that literal blindness because of this relationship that you have with them. You turn a blind eye to it from an institutional perspective, believe your perception is that if you were to speak up, you’re the one that’s going to be retaliated against. You’re the one that’s going to be basically hurt by whatever accusation that you make.
And again, if it’s your word against somebody else’s, it’s too much of a risk for certain types of personality types to want to go down that route. It’s a very uncomfortable situation for certain types of people. They do feel embarrassment. They do feel like they may have—it’s that guilt feeling as well. The irrational belief that they somehow created the situation that they’ve found themselves in. If only they didn’t do a certain thing, if they only then say a certain thing or dress a certain way. Again, these are all irrational. Again, beliefs are perception. Our perception is our reality.
And do you think it’s common? The victim tends to blame themselves. I didn’t maybe dress this way or if I maybe didn’t behave a certain way that they probably wouldn’t do that to me or I wouldn’t be in that specific situation.
It’s absolutely true in certain types of people. Not in everybody though. I mean there are certain people who will never think this way, but there’s a lot of people who do.
VICTIMS DEAL WITH HARASSMENT IN DIFFERENT WAYS
Do you think there’s a reason to anything maybe in their past or just life experiences that they’ve gone through personally on why they feel that way
Everything is connected. So you have this thing called the hypothalamic pituitary adrenal cortex. It’s basically our fight or flight response. It controls the biochemistry of the brain. Let me give you three very simple examples.
You have an executive in a company. You have a professional fighter, and you have a construction worker. All three are in a crowded room.
And there’s a loud sound. Just think of a very loud banging sound. You have the executive who immediately falls to the floor and covers up. So he has a very strong fear response and feels humiliated for reacting in this way because again, whatever the stimulus was, whatever the loud sound was, it was non-threatening but it came off as such. So he has embarrassment in regards to the way that he reacted. It was an automatic response.
It has to do with this hypothalamic pituitary adrenal cortex. There are chemicals that are released in the brain. It’s fight or flight. You have the professional fighter who hears the exact same sound at the exact same time, but his response is to get into a fighter’s position. Again, we can kind of understand where that’s coming from. It’s not necessarily a fear response. There’s a lot of adrenaline being released; norepinephrine, epinephrine, increased levels of cortisol, and just adrenaline basically.
And again, he feels humiliated by his reaction because the room is crowded. He’s unhappy with how he reacted to that stimulus. And then the third individual, you have the construction worker who basically does nothing. So what was going on in his brain? Pretty much nothing. His baseline has been status quo. Yeah. Again, when people are in construction, they’re constantly surrounded in it, exposed to loud sounds that come from surroundings that you’re not prepared for.
So through exposure to this, we become desensitized. Now all three reacted in very different ways to a specific stimulus. Based on our prior experiences or genetic predispositions and just our perception, we can have different reactions. So not everybody is going to be affected from sexual harassment in these ways. Some people may not have any of these, but for instance, it is absolutely appropriate to feel fear going back into an environment.
It is absolutely appropriate to have anxiety, but not everybody is going to have these experiences. It really has to do with the individual and how they react. What is their life experience from the very primitive viewpoint of humans? If you look at life from that very evolutionary perspective, we’re made to do two things; survive and procreate. So we have something like anxiety for instance.
Anxiety is not supposed to last any longer than four or five minutes. From a very primitive standpoint, the world in which we are living in today, obviously it’s not conducive to this. If anxiety is not supposed to last more than four to five minutes, why is that? We either got away from the predator or were killed.
Basically, all of this is evolution. It’s an adaptive function to protect us, to keep us alive. So imagine you’re faced with a predator. Picture yourself coming face to face with a bear. Imagine the feeling you’re going to have turning a corner and seeing a bear right in front of you. Whatever emotions that are going to be released, whatever feelings you’re going to have, you’re going to either freeze, or you’re going to try to fight. You’re going to try to run away.
One of these things is going to happen. You don’t necessarily have control over which one you choose. It’s just going to happen. It’s a hostile environment where there’s unwanted behavior from coworkers. You’re going to go back into this environment day after day after day. This is similar to the bear example, except it’s continuous. It doesn’t just stop. So as this goes on, people have harsher responses to the anxiety, to the stressors, to the anger, however they react. And this is where the post traumatic stress disorder comes from.
BEST COPING METHODS FOR HARASSMENT VICTIMS
For the people that are experiencing that, are there any specific coping methods,? Talking to people or therapy or what are kind of the best coping methods when it comes to someone experiencing a traumatic event like that?
Martha Langelan and everything on this slide is again, great. You do something that’s unexpected. Hold people accountable for what they do, speak honestly and be very direct. There’s no reason to sugarcoat anything. If it is a joke that you are taking offense to, but everybody else is laughing. The longer you wait, the more you’re welcoming that. The longer we let ourselves not speak up, the more it’s going to impact our physiological, psychological, it’s going to affect our workplace, and productivity.
It’s going to affect our home life and it’s going to affect the company, as well. Again, it doesn’t have to lead to a lawsuit. It could have been stopped in that moment. But unfortunately people don’t sometimes believe they have the option to speak up or they don’t speak up early enough and they feel like it may be too late.
MEDICAL EXPENSES: WHO PAYS THEM?
Does the employer, let’s say they go through a therapy or a specific medical thing, is that a part of the lawsuit or what does that process kind of look like? If you could chime in on that piece quickly for us.
Certainly all of the symptoms that Dr Moayedi listed are cut and pasted into any litigation on my desk. They can be profound. Employers in a lawsuit will be responsible for those medical damages and employers looking to address cases, pre-litigation can offer to pay for therapy. Which can be very valuable both in terms of the actual therapy but also in the gesture itself that people feel supported.
LAWYER’S EXPERIENCE IN SOLVING HARASSMENT CASES
Any particular additional example you’d like to give of another case that you kind of worked on as well?
The one from this list that probably warrants, I mentioned is the second one. It was a law firm partner that has his assistant sit in his lap. When I use that example, people think that the assistant sitting in his lap is the plaintiff in this case. She’s not. It’s the other assistants. Yeah. States and the federal government recognize almost like a transitive nature of harassment that I can be having someone sit in my lap, but that person is okay with it.
They’re not harassed, but the other assistants are looking at that feeling it creates a hostile work environment and feeling like to get ahead in this environment, I’ve got to sit in his lap too. I think that one is kind of the more novel one from the list. The bad comments and pictures, texts, and people touching each other is what comes to mind. But, it’s complicated.
How do you handle a situation where the offender is unknown, for example, leaving inappropriate items on a coworker’s desk that night?
That’s a great question. A couple of things to say about that. One, if it’s truly unknown, employers have an affirmative legal obligation to conduct a good faith investigation. So rounding everybody up in the department, interviewing them individually is not over the line. That’s in fact probably required. So you should be able to get to the bottom of it. It was probably, it was really what I’m saying.
Additionally, what companies can do and what the law requires of companies, is require people to participate in an investigation. So if someone were to come forward and say, I’ve got a complaint, but I don’t want to say about who, but there has been bad behavior.
When the company conducts investigation say, Hey Brent, I want to sit in your office. I’ve got some questions. You ever seen this? And people throw their hands up and go, hey man, I don’t want to answer questions. I don’t want to get involved in this. And employee can go, you’re fired. It is not retaliatory to punish people, even terminate people for their refusal to participate in the investigation. So I encourage my clients to be very strict, that compliance with the investigation is mandatory.
Brent, if you could please discuss the issue of cultural sensitivities where perceptions of sexual harassment could be quite different. How could we kind of blend that in?
That’s a great question. I cannot think if I had a year in San Diego, we have a big computer programming software engineer field. A lot of first generation Indian-Americans and sometimes I’ve had a few litigation, a few pieces of litigation, out of that community where behavior that the harasser, or in one instance, it’s actually the victim was found to be so over the line that we in America, this western culture would look at that and go, that is really benign. And it’s difficult to bring someone in the office and go, you should not be offended by this.
Legally, we use a reasonable person’s standard, which is in a lot of laws and means approximately nothing. But it is a delicate art for people in the HR field. And so yes, while someone may have certain cultural sensitivities that make them uniquely victimized by behavior, that everyone else would consider to be okay, and thus the company legally would probably prevail in any lawsuit. It doesn’t make it any easier for the HR professional, the boots on the ground. Employing a full scale investigation and response to a good faith complaint is your obligation regardless of whether on the surface you look at it and think that the claim is weak.
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